Today, we here at Abnormal Use continue our  tribute to the 1993 film Rudy and celebrate its twentieth anniversary with a special edition of “Abnormal Interviews.” For this latest installment, we turn to motivational speaker and former Notre Dame college football player Daniel “Rudy” Ruettiger, the inspirational figure behind the film.  That’s right.  The Rudy Ruettiger.  You know, the Rudy Ruettiger, who despite his 5’6″, 185 pound stature,  walked-on to the storied Notre Dame football team from 1974-1975 back in an era when walk-ons were much less common place than they are today.  Yes, that Rudy. Rudy’s story, as told in the film, has served as an inspiration to many.  After speaking with Rudy for just a short time, we quickly learned that his story is more than a made-for-Hollywood tale.  Rudy is as inspirational to interview as his film is to watch and made us feel as if we should pull that brief back off of the partner’s desk and add a few more citations just to spice it up.  Without further ado, the interview is as follows:

NICK FARR:  Looking back now twenty years,  what are your thoughts on how the film has resonated with viewers?

RUDY RUETTIGER:  It’s interesting, it’s affected people spiritually in a big way because of the message of – nondenominational message, not a religious message, it’s a spiritual message of not giving up, getting up when you get hit hard, keep moving forward, don’t listen to the naysayers, persevere, be persistent.  That’s the message that comes through loud and clear through the movie.  In the last twenty years, I’ve heard many stories how the movie has really helped people.   One guy came up to me that had cancer and he used to the movie to get himself in a positive state of mind to help get himself cured.  You hear all these stories  you hear of kids hav[ing] misfortune, families hav[ing] misfortune and they use the movie wording to encourage them.  To me, the movie worked as I saw it.  The movie worked as I presented it to Hollywood and Notre Dame.  It wasn’t solely about me.  It was more about the journey of life, how we look at life, how we can changes our thoughts, our thoughts control who we are, so that type of thing.

NF:  How did the movie come to life?  How did you feel once you saw a representation of your life on the big screen?

RR:  I got my inspiration through a movie that I watched called Rocky. It inspired me  to do other movies like that. Where they needed to go I thought Notre Dame would be such an elite status in America for sports and academics and you break through that.  That’s an underdog story.  So I went out to Hollywood and started pitching that.  It took ten years to find – well, eight years to find someone to listen and in the ninth year, we started the process and the tenth year we got the okay to produce the movie through a company, Tri Star Pictures Columbia Pictures.  We went through a series of mistakes and misfortunes. . . . Notre Dame was a challenge.  They didn’t want Hollywood to come in. . . . Very, very, very tough sell, but it all came together at the end.  I think God has a special way of putting things together when you do the right stuff even though you make a lot of mistakes, you learn something.  You don’t live by them you learn from them and you move on.  And I think that’s how the movie happened.

NF:  With your story personally, starting out at Holy Cross, finding your way onto the scout team at Notre Dame, and being a “undersized player”, what was your source of motivation throughout that whole process.

Rudy: That’s a good question.  I entered the Navy after high school. [The Navy] changed my whole environment, my whole attitude of life basically because it –  I didn’t know I had a learning disorder, I was kinda put down, kinda bullied.  I was put in the category of the dumb kid.  To make a long story short, I chose to go into the United States Navy, I changed my whole attitude about who I was and had confidence.  And from there I went back to work . . . I didn’t know how to pursue Notre Dame even though that dream came back.  Holy Cross was the answer.  I never went to the people, my high school counselors . . . . I went to other people who believed in me.  They said Rudy that’s a great choice  A junior college is a great choice. You go there because at a junior college great people come around you.  They want you to win.  You succeed academically and then you transfer. It’s right across the street.  And that little junior college was exposed to me just by chance.  By chance for the first time in my life I went up to the Notre Dame football game, never had a ticket.  And I saw the junior college and said there’s my answer.  It’s right there.  So that’s kinda like it all happened and from a junior college of course I made the decision not to be a scholarship player but to be part of a football tradition.  So that changed my whole attitude.  I could be part of something.  I don’t have to start.  I don’t have to do all the things they say I need to do other than contribute to that football team.  And that was a realistic choice because that was real.  I go through a lot of disappointment of course and a lot of alienation because you’re dealing with elite coaches, elite culture, elite outreach and they don’t accept walk-ons because there were 145 scholarships at the time.  And I understood that.  So I just used my Navy attitude —- do what you want, do what you need to get done.  Find a way to do it.  Because of that attitude, it happened.  By doing your work.  Do what’s important.  Showing up and everything falls in place.

NF:  Tell us a little bit about Coach Devine.  I know that some people have said that in the movie he is  portrayed as maybe the antagonist but we understand that may have not actually been the case.

RR:  Exactly, you’re absolutely right.  Coach Devine, we sat down with Coach Devine and the writer, and they started to explain to him why he had to be the heavy.  We had to do composites of other coaches and his personality because we wanted to show the real realism of college coaching and the politics.  He agreed to do that because he saw the benefit of a guy like a Rudy that could benefit a football team.  He said,  “Absolutely.”  Not that he completely understood it, but he accepted it, and again, because of the movie, once he saw it, he understood it, and he accepted it again.  It was a courageous move by him I thought for him to accept that role. And, of course, Ara Parseghian – same type of person but yet at the same time he was a tough guy, too.  He gave me a chance to walk on.  So, saying all that, as you know sports today – it’s still the same, it hasn’t changed.  Walk-ons are more accepted today because of lower scholarship demand.  And walk-ons still contribute.  So that changes everything and there’s a lot of athletes walk on and play baseball, football, national football, NBA.  And there’s great athletes that use the movie Rudy to inspire them to keep working harder. How important is that chip on your shoulder? Kobe Bryant is a great example because he uses that movie to inspire him to work hard.  Knowing that he has talent but will have to work hard even though he  gets knocked down you gotta get back up so he uses that movie. All these guys relate to that.  There’s guys in the NFL as well. . . . So my point is – my whole point is the movie p represented the underdog and you gotta show that conflict and that’s where he accepted.

NF:  How did you feel about Sean Astin portraying you on film?

RR:  Sean Astin was a perfect choice.  We were actually looking at another great actor by the name of Chris O’Donnell. He was under contract, but because of a movie I saw, it inspired me to call. Not that I was an expert on casting but I asked them if they would please look at Sean.  They liked him, and he got the role.  So, Sean Astin, basically, to make a long story short, made his career from Rudy. . . .

NF:  And you, yourself, made a cameo in the film.

RR:  Yeah, of course, you wanted to be part of that film so I wanted to do a cameo part.  But I was also encouraged by the director and the producers to do it.  I wanted to do it, why not?  When they made Secretariat, the lady who owns Secretariat, she made a cameo.  I think it’s important to make your cameos in movies like that.

NF:  Do you have a favorite sports movie?

RR:  I liked Remember The Titans.  I liked Hoosiers.  Rocky was my favorite, I think, of all.  I like Rocky Balboa.  I liked Secretariat.  The underdog type movie I think is what inspires me. . . . So saying all that and being part of all that – you put all that together and you tell yourself why not, why can’t I do it?  And that was the attitude I had.

NF:  One last question:  Do you have any predictions for the college football season this year?

RR:  Well, college football – you look at the heavyweights, your Alabamas, your Texas A&Ms, because of big quarterbacks.  I think Ohio State and maybe Alabama in the final.  That’s kinda the gut feeling I’m getting.  Who knows?  Great teams are upset, blindsided and they let their guard down.  But again, Southern Cal, Notre Dame, Ohio State, Michigan – all those teams – Wisconsin, great team.  Northwestern, I mean watching them come from where they were and where they’re at today – Ohio State, great team.  I mean, it’s just – shows you some great kids out there, great coaches, Coach Peterson is a great coach.  So there is – I love college football.  It’s exciting to me.  I love the playoffs for major league baseball in October.  I love it.  It’s just one of those things.

BIOGRAPHY: Daniel “Rudy” Ruettiger was born in Joliet, Illinois.   He spent one year in the United States Navy following high school.  Thereafter, he worked for a power plant before applying to Notre Dame.  Due to marginal grades, he completed his early college work at Holy Cross College before finally being accepted to Notre Dame in 1974.   Following his time at Notre Dame and the release of Rudy in 1993, Rudy has served as a motivational speaker, traveling the country inspiring others through his story of determination.  He can be found on Twitter at @TheRealRudy.

Last week, McDonald’s announced it was switching from polystyrene (aka Styrofoam) to double-walled paper cups for hot beverages in all of its restaurants. The move is made in response to changing consumer preferences and an increase in environmental consciousness. There’s nothing wrong with that, we suppose. However, whenever McDonald’s acts, it seems as if someone is there to tell us that it is bad. If you are asking why this is reportable news, then let us catch you up on the last 20 years of legal pop culture. For starters, McDonald’s coffee cups (and its coffee) are no strangers to publicity. Ever since Stella Liebeck infamously spilled a cup of McDonald’s coffee into her lap back in 1992, McDonald’s coffee has been parodied in major television shows such as “Seinfeld” and has been the cover story of an HBO documentary on the civil justice system. Always a topic of debate among lawyers and non-lawyers alike, it should come as no surprise that when the fast food chain announced a change in material for its hot beverage containers, the news sent the interwebs into a flutter.

The major significance of the announcement is not the reasons for the change, but rather the effect the change may have on future litigation. Inevitably, someone will spill coffee from one of the new cups onto himself and claim that the spill would not have occurred but for the double-walled paper construction. While we have no idea whether there is a financial difference between paper and polystyrene, we wouldn’t be surprised to see an argument in the future that McDonald’s is sacrificing consumer safety in favor of increased profit margins. Such an argument is likely a complete farce, ignoring the valid reasons behind the change. Unfortunately, this is the climate in which McDonald’s and other businesses face.

The environmental impact of a switch away from polystyrene cannot be understated. Given the billions of cups of coffee sold by McDonald’s, the impact is significant. Nonetheless, any change, albeit a good one, made by McDonald’s regarding its coffee production, will undoubtedly find its way into the allegations of a complaint. Remember, you heard it here first.

Growing up in the ’90’s, we were always fascinated with the Detroit-based rap duo known as the Insane Clown Posse (“ICP”). Their music was not particularly good, but something about the band’s “wicked clown” personas always intrigued us. Apparently, there is more to ICP than some circus makeup and the honor of being named GQ‘s “worst rappers of all time.” In a complete shocker, reports have surfaced that they are also alleged sexual harassers. Consider us floored.

As reported by the ABA Journal, the band’s ex-publicist (and “in-house counsel”) has sued ICP and its record label, Psychopathic Records, alleging that she was sexually harassed and belittled in the workplace. The suit contains a plethora of allegations against the band, including giving Pelligreni a sex toy, ordering her to use unsafe unisex bathrooms, and calling her demeaning names. In addition, ICP allegedly took advantage of her legal background and named her “in-house counsel” so that her knowledge of the corporate wrongdoing at issue would be protected by the attorney-client privilege. Interestingly, she was also asked to reveal other protected information for media-related purposes.

Being a publicist for a celebrity must be a tough gig. We imagine working for two guys known as “Shaggy 2 Dope” and “Violent J” just increases those difficulties. At this point the Plaintiff’s allegations are just that; however, if true, it is safe to say her work environment was far more substandard than that of her colleagues. Look for ICP to grace the cover of GQ‘s next big issue, “Worst Bosses of All Time.”

As lawyers, we have to wonder why Pelligreni decided to forego life as a lawyer for that of a publicist. Big law may not be all the glam it appears on the surface, but we doubt too many senior partners are passing sex toys off as annual bonuses. Hindsight is 20/20, we suppose.

Back in July, a Texas woman died after being thrown from the 14-story tall “Texas Giant” roller coaster at Six Flags Over Texas. Initial statements did not specify the cause of the woman’s death; however, others on the ride speculated her death was attributed to a safety bar:

[The woman] goes up like this. Then when it drops to come down, that’s when it (the safety bar) released and she just tumbled. . . . They didn’t secure her right. One of the employees from the park — one of the ladies — she asked her to click her more than once, and they were like, `As long you heard it click, you’re OK.’ Everybody else is like, `Click, click, click.’ Hers only clicked once. Hers was the only one that went down once, and she didn’t feel safe, but they let her still get on the ride.

Regardless of the cause, Six Flags closed down the coaster until last weekend while it investigated.

Since the re-opening, the woman’s estate filed a wrongful death lawsuit against the amusement park in Texas state court. In the suit papers, the estate alleges that post-accident inspections revealed that various parts of the ride’s security systems were experiencing “inconsistencies and intermittent failures.” After the woman’s death, Six Flags allegedly had to replace a defective “limit switch” which shows the lap bar is in place. The estate seeks at least $1 million in damages.

Six Flags has apparently never revealed the findings of any internal investigation. The ride is now equipped with new seat belts and redesigned restraint bar pads (implicating subsequent remedial measures concerns, naturally).

Oddly, Six Flags is now also providing a sample seat at the entrance of the ride for people to judge for themselves whether they fit safely. We here at Abnormal Use will withhold any opinions on whether Six Flags should bear any responsibility for the woman’s death. We will say for any future accidents, however, that we would hate to resort to the “plaintiff had the opportunity to try the seat out ahead of time” defense. Hopefully, Six Flags is making this move to ease the fear of future riders. We can only hope.

On the heels of an adverse ruling regarding the alleged deceptive advertising of its VitaminWater line, Coca-Cola finds itself back in court facing similar claims over its soft drinks. According to reports, George Engurasoff and Joshua Ogden have sued Coke, alleging that the company has been deceiving consumers by failing to mention that its signature soft drink contains artificial ingredients. These plaintiffs drink only organic, all-natural soft drinks, apparently.

The plaintiffs take particular exception to Coke’s alleged use of phosphoric acid as a flavor-enhancer. According to the plaintiffs’ complaint, Coke’s website indicates that phosphoric acid is “one of the basic elements of nature” and is used in certain soft drinks “to add tartness to the beverage.” These claims, according to the plaintiffs, are misleading. Phosphorous is a naturally occurring element bearing the atomic number 15 on the periodic table. Phosphoric acid, on the other hand, is not one of those “basic elements of nature.” As such, the plaintiffs allege that it is an artifical flavoring – one that has not been disclosed by Coke.

Whether or not phosphoric acid is an artificial flavoring is a question we here at Abnormal Use will leave for the court. Regardless of the answer, we do question just how these plaintiffs have been damaged. They claim that they relied on the soft drink’s labeling and would not have purchased Coke had they known its true contents. Call it a hunch, but we doubt there were too many true “all-natural” soft drink alternatives out there. We also doubt they were all that concerned about phosphoric acid consumption in the first place. Here is the real kicker. They allege that they have only purchased around $25 worth of Coke in the last four years. Using loose, faulty math, $25 of Coke over four years equates to one can of Coke per month. One can. From someone who consumed $25 worth of Coke in the last four days, we don’t feel too sorry for these plaintiffs’ loss of investment.

We agree that there are valid reasons for product labels and that companies should abide by those regulations. But if a class wants to organize and sue a company over it, make sure the named plaintiffs are out more than $25.

The lawsuit is George Engurasoff, et al. v. the Coca-Cola Co., No. 1:13-cv-03990S (N.D. Ca. 2013)

Just one week after we wrote about the impact of the NFL concussion/brain injury litigation, news broke that the parties reached a settlement. According to an AP report, the NFL has agreed to pay $765 million over the next 20 years to former players who developed dementia or other concussion related symptoms allegedly caused by football. The settlement applies to all past NFL players and spouses of those who are deceased — a group that could total more than 20,000. The vast majority of the settlement goes to compensating retirees with certain neurological ailments. In addition, it sets aside $75 million for medical exams and $10 million for medical research. The settlement now awaits court approval.

A three quarters of a billion dollar settlement sounds like a lot of money to most. To the NFL, however, it is less than one-tenth of its gross profit margin for the 2012 season. Couple that with the fact that the players sought $2 billion and the settlement might appear to be a sour deal for the plaintiffs.

According to a report out of Sports Illustrated, the deal may not be as bad as it appears. Apparently, U.S. District Judge Anita Brody informed the two sides that she was ready to side with the NFL and find that many who played during the former collective bargaining agreement (1994-2010) should be excluded. This ruling would have cut a large number of plaintiffs out of the class. SI notes that Judge Brody also indicated that since the league’s concussion committee wasn’t formed until 1994, those remaining in the suit would have a tough time proving any fraud allegations. And so it appears the players had some reason to negotiate. While the NFL had indicated it was willing to take the case to trial, it, too, had every incentive to reach a settlement. If the plaintiffs’ allegations are true, the NFL knew far more than it let on about the long term risks of concussions than it claims. By settling now, what it did and did not know won’t come out through the discovery process. Accordingly, the NFL can avoid the public relations nightmare of having to explain away any cover-up.

So, maybe this is one of those cases where just about everyone comes out a winner. Former players get a financial settlement. The NFL avoids a PR disaster. Current and future players benefit from additional research and a heightened awareness for safety. Fans get a new season without the hassles of litigation. Now, if we could just do something about those rule changes, everyone can move on enjoying the sport we all love.

Winnie The Pooh, beware. Jackie Chiles is coming for you. Chiles, the flamboyant and opportunistic trial lawyer of “Seinfeld” fame, has been retained by Jim Beam to enjoin bears everywhere from continuing with their honey theft.

So what’s Jim Beam’s beef with bears? Well, the Kentucky bourbon whiskey brand has developed a new product infused with honey and liqueur known as Jim Beam Honey. It appears that honey production has been depressed by a decline in the honey bee population. Even though the supply is waning, Jim Beam needs its honey – and it is willing to fight the largest consumer to get it.

Speaking to the media through his handlers, Chiles had this to say about the suit:

“Bears are egregious, devious, and just plain mischievous! . . . I’m here to go on the record – with Jim Beam Honey as my witness – to ensure that sweet, mouth-watering justice is served!”

With Chiles leading the charge for Beam, the bears may be in trouble. For their sake, we hope the bears have Vincent Gambini on speed dial.

We here at Abnormal Use are glad to see Chiles back in action. We are typically not fans of frivolous lawsuits, but Chiles is a friend of the blog. (We previously scored an interview with Phil Morris, the actor who brought Chiles to life). We have no idea what will happen with the bears, but for some reason, hearing about Chiles’ revival makes us want to buy a bottle of Jim Beam Honey. In fairness, though, we probably would have done that anyway.

If you are a football fan, you have probably heard about the concussion/brain injury litigation against the NFL. The litigation has been going on for quite some time and seems to be growing with every passing week. We here at Abnormal Use first wrote about it way, way back in 2011. Two years later, there appears to be no end in site. While we have no idea when the litigation will end, we have a pretty good idea of how it might do so. More than likely, the numerous current and former player plaintiffs will find themselves the recipients of a hefty settlement. But the financial and legal ramifications of this suit should be the least of the NFL’s concern. We here at Abnormal Use fear that this litigation may put a nail in the coffin of football as we know it.

Before you criticize us for such draconian ideas, hear us out. Since the early days of football, the game has gotten safer as technology has evolved. Safety should always be a concern, and we encourage any equipment upgrades which can offer the players better protection. With that being said, however, we strongly oppose altering the game of football as we generally know it.

Undoubtedly motivated by the litigation, the NFL has revealed a number of new safety rules for the 2013 season, including a rule that prohibits ball carriers from initiating contact with the crown of the helmet. Likewise, the NCAA has instituted automatic ejections for helmet-first contact. For the naysayers, these new rules sound reasonable and prudent. For football purists, on the other hand, these rules are the first steps in the game’s demise.

As we stated back in 2011, football by its very nature is a dangerous sport. The players are bigger and more athletic than ever before. The NFL and the NCAA can and should continue to explore safer equipment alternatives to protect these athletes. But changing the rules in an effort to eliminate “dangerous” contact robs the game of its very essence. Sure, the new rules are aimed to lessen head injuries and may very well serve their purpose. We are concerned, however, of the slippery slope in store. Now that players can’t hit high, they have nowhere else to hit but low. With more lower hits, comes more season or career ending knee injuries. Football probably needs a rule to prohibit that, too.

Football is a contact sport; therefore, contact will happen. The only way to truly prevent injuries, short of dressing players in sumo costumes, is to do away with contact altogether. If the NFL continues to be overly reactive to the threat of litigation, football will become so regulated that it no longer resembles the sport we have come to love.

During a recent bout of boredom, we discovered the Wikipedia page for “Service of Process.”  After reading through the standard fare for manner of service, we came across this interesting tidbit:

Courts in at least two Canadian provincial jurisdictions have allowed for substituted service via Facebook.

Service via Facebook?  Certainly, it can’t be legitimate to write, “You’ve been served,” on someone’s Facebook wall and have that hold up in a court of law.  We thought that this must be a case of a wiki author having fun editing a page to poke fun at Canadians, right?  Wrong, the Court of Quebec did in fact hold back in 2011 that Facebook messaging was an appropriate method for service of process.

In Boivin v. Scott et al., a Canadian plaintiff for whatever reason encountered difficulty serving a Florida resident.  In response, the Quebec court held (via Google Translate, mind you):

The only way for the plaintiff to the defendant to convey the original application is through his Facebook address. Indeed, it is a direct and convenient way to notify the defendant that proceedings are taken against her so she could prepare his defense and to be heard, which meets the main purpose of the service.

The court was certainly correct in that Facebook service would be direct and convenient – at least for the plaintiff.  The defendant gets to finally look forward to a Facebook notification that has nothing to do with Farmville.  Of course, that only applies if the plaintiff served the correct Facebook profile in the first place.

As technologically savvy as we may be, in our opinion, due process should never take a back seat to convenience.  There are reasons why personal service is preferred and that substituted service should only be used as a last resort.  The rules are designed to protect defendants, making sure they are properly notified of suits against them.

Service by Facebook, while convenient for the plaintiff, lacks these safeguards.

Facebook service simply has too many questions.  Here are a few that come to mind:

• Just because a Facebook profile looks to be that of the defendant, who can guarantee it is?  Facebook contains millions of accounts, many real and many fake.  Serving the Facebook account of “John Doe of Greenville, SC” does not assure that the correct John Doe was actually served.
• Not that plaintiffs would ever be so sinister, but what prevents a plaintiff from making a Facebook profile for the defendant he wants to serve for the purpose of service?  If you can make a Facebook page for God, making one for the defendant is not outside the realm of possibility. What safeguards exist to guard against such malfeasance?
• Lastly, even if a person is served to the proper Facebook account, how does one know that the defendant actively uses the account and would find the complaint?  Certainly, there are tons of people with Facebook accounts who haven’t accessed them in years.  The accounts still show as active even though they have not been officially de-activated.  Do we really want to equate Facebook profiles in the same vain as a last known address? Plus, what if the account is active, but the message ends up in the somewhat hidden “Other” mailbox?

With all these questions, service by Facebook is not a process we would feel comfortably advocating.  Unfortunately, however, we think that this may be the wave of the future.  At least one U.S. court has ordered service of process by Facebook message.  We expect many more to come.

Despite what you might think from reading our posts here at Abnormal Use, not all McDonald’s litigation concerns hot coffee.  As obsessed as we are with the subject, this revelation came as a bit of a surprise.  It is shocking to learn that in the post-Stella Liebeck era any non-coffee related information could be considering newsworthy – especially for a distinguished legal blog.  Thankfully, our eyes have been opened or else we would have missed out on these two incredible stories.

Back in July,  an intoxicated Florida woman was arrested after blocking a McDonald’s drive-thru in search of free Big Macs for breakfast. According to the Consumerist, the woman pulled up to the drive-thru around 6:00 a.m. and demanded two free Big Macs as retribution for past discrepancies.  After being told that Big Macs are not available for breakfast, the woman politely changed her demand to two free Egg McMuffins.  Sounds reasonable.  Unfortunately, McDonald’s balked at the idea of giving away free food and asked the woman to leave.  She valiantly responded by blocking the drive-thru until police arrived.  She was arrested for DUI and apparently taken to jail hungry.

Last week, a Georgia man called 9-1-1 after McDonald’s allegedly messed up his order.  According to reports, the man entered the restaurant and ordered 7 McDoubles, a McChicken, and an order of fries to-go.  When the man returned to his truck, he discovered that the employee placed not 7, but 6, McDoubles in the bag.    He then re-entered the restaurant and apparently got some “attitude” from the employee rather than his AWOL burger.  The man’s response?  Call 9-1-1 and report that his burger had been swapped with a serving of ‘tude.  The police were not fond of the man’s use of the emergency response system, arresting the man and having him spend a night in jail.

Even though these cases do not involve coffee, they share a common theme:  Mess with McDonald’s and expect to make the news.